Citation Nr: 1326472
Decision Date: 08/20/13 Archive Date: 08/26/13
DOCKET NO. 11-31 422 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan
THE ISSUES
1. Whether new and material evidence to reopen a claim for service connection for the cause of the Veteran's death has been received.
2. Entitlement to service connection for the cause of the Veteran's death, to include as due to herbicide exposure.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
Shauna M. Watkins, Associate Counsel
INTRODUCTION
The Veteran served on active duty from June 1968 to June 1970. He died in January 1995; the appellant is the Veteran's surviving spouse.
A claim for service connection for the cause of the Veteran's death was brought by the Appellant and was denied by the RO in March 1995. A request to reopen the previously denied claim was then denied by the RO in a June 2004 rating decision. Although notified of the denials, the Appellant did not appeal.
This appeal to the Board of Veterans' Appeals (Board) arose from an April 2011 rating decision in which the RO declined to reopen a previously-denied claim for service connection for the cause of the Veteran's death (on the basis that new and material evidence to reopen the claim had not been received). In May 2011, the Veteran filed a notice of disagreement (NOD). In October 2011, the RO issued a statement of the case (SOC) which reflects the RO's continued denial of the request to reopen. The Veteran filed a timely substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals ) in November 2011.
Regarding characterization of the appeal, it is noted that, regardless of the RO's actions, the Board has a legal duty under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the question of whether new and material evidence has been received to reopen the previously-denied claim for service connection. That matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). Therefore, the Board has characterized the appeal as involving a request to reopen the previously-denied claim-and, given the favorable disposition on this aspect of the appeal-as well as the claim for service connection, on the merits (as reflected on the title page).
The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim.
The Board's decision reopening the claim for service connection for the cause of the Veteran's death is set forth below. The reopened claim is addressed in the remand following the order; this matter is being remanded to the RO, via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Appellant when further action, on her part, is required.
FINDINGS OF FACT
1. All notification and development actions needed to fairly adjudicate the matter herein decided have been accomplished.
2. In a June 2004 rating decision, the RO denied the Appellant's request to reopen a previously-denied claim for service connection for the cause of the Veteran's death; although notified of the denial in July 2004, the Appellant did not initiate an appeal of the decision.
3. Evidence associated with the claims file since the June 2004 rating decision, but after the relevant appeal period, is not cumulative and redundant of evidence of record at the time of the prior denial, relates to an unestablished fact necessary to substantiate the claim for service connection for the cause of the Veteran's death and raises a reasonable possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The June 2004 rating decision in which the RO denied a request to reopen the previously denied claim for service connection for the cause of the Veteran's death is final. 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012).
2. As pertinent evidence received since the June 2004 denial is new and material, the criteria for reopening the claim for service connection for the cause of the Veteran's death are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R.
§ 3.156 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Due Process Considerations
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).
Given the Board's favorable disposition of the request to reopen the claim for service connection for the cause of the Veteran's death, the Board finds that all notification and development actions needed to fairly adjudicate this aspect of the appeal have been accomplished.
II. Analysis
Under the legal authority in effect at the time of the prior denial and currently, to establish entitlement to service connection for the cause of the Veteran's death, the evidence of record must show that a disability incurred in or aggravated by service either caused or contributed substantially to his death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2012). Service-connected disability will be considered as the principal cause of death when such disability, singly or jointly with another condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b) (2012). To be considered a contributory cause of death, it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; or that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c)(1) (2012). It is not sufficient to show that the service-connected disability casually shared in producing death; rather, a causal connection must be shown. Id.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012).
A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and has a disease listed in 38 C.F.R. § 3.309(e) (2012) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. Service in the Republic of Vietnam is interpreted as requiring service on the landmass of Vietnam. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525).
If a Veteran was exposed to a herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) (2012) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (2012) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type II diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2012). In addition, effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) (2012) to add chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange). 75 Fed. Reg. 53202 -53216 (August 31, 2010).
The Board also points out that, where a Veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and leukemia becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Also, while the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c) (2012).
The Appellant's original claim for the cause of the Veteran's death was denied in an March 1995 rating decision. The evidence of record at the time of the March 1995 denial included the Veteran's service treatment records, which are silent for any leukemia-related complaints (the cause of the Veteran's death). Post-service lay statements, VA treatment records, and VA examinations, absent pertinent medical opinions, were also of record. The claims file also included a Social Security Administration (SSA) award letter for benefits, but the associated records were not in the claims file. The RO essentially denied the claim because of the absence of any reference to leukemia in service and medical evidence of a relationship between the Veteran's death and his active military service, to include in-service herbicide exposure. Although notified of the denial in March 1995, the Appellant did not initiate an appeal of the decision.
In a June 2004 rating decision, the RO denied the Appellant's request to reopen the previously denied claim for service connection for the cause of the Veteran's death. The evidence of record at the time of the June 2004 denial included the aforementioned evidence plus statements from the Appellant and another SSA award letter. The RO essentially denied the claim because of the absence of any new and material evidence to reopen the claim.
Although the Appellant was notified of the June 2004 denial and of her appellate rights, she did not initiate an appeal. No additional pertinent evidence was received within one-year following notification of the June 2004 denial, and no additional service records were received at any point, warranting readjudication of the claim. See 38 C.F.R. § 3.156(b), (c) (2012). As such, the RO's June 2004 decision is final as to the evidence then of record, and is not subject to revision on the same factual basis. See 38 U.S.C.A. § 7105(b) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012).
However, under pertinent legal authority, VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2012); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
The Appellant filed her request to reopen in October 2010. Regarding petitions to reopen filed on and after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decisionmakers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). New evidence raises a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would trigger the VA Secretary's duty to provide a medical examination or opinion. Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010).
In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law , "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material.
The provisions of 38 U.S.C.A. § 5108 (West 2002) require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). Here, the last final denial of the claim is the RO's June 2004 rating decision. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992).
Pertinent evidence added to the claims file since June 2004 includes the Veteran's private treatment records dated in the months prior to his death, and lay statements from the Appellant and her representative, to include an April 2013 Informal Hearing Presentation (IHP).
The Board finds the foregoing evidence is "new" in that it was not before agency decisionmakers at the time of the June 2004 denial of the claim, and is not duplicative or cumulative of evidence previously of record.
Moreover, this evidence is "material" in that it shows a diagnosis of and treatment for acute myelogenous leukemia in the months prior to the Veteran's death. Additionally, in the April 2013 IHP, the Appellant's representative argued that there was evidence of a causal relationship between benzene (part of the chemical structure of Agent Orange) and acute leukemia, and cited to the current medical literature. Throughout her appeal, the Appellant has argued that the Veteran's death from acute myelogenous leukemia was due to his in-service herbicide exposure (i.e., Agent Orange).
Also as noted, since the June 2004 last denial of the claim, the governing regulation has been amended to include chronic b-cell leukemias among the list of disorders presumed to have been incurred during service as result of exposure to herbicides (which, in turn, is presumed for veterans who served in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.309(e) (2012); 75 Fed. Reg. 53202 -53216 (August 31, 2010). Although there is no clear medical indication in the record of whether acute myelogenous leukemia is a type of chronic b-cell leukemia, arguments by the appellant's representative suggest that such may be the case.
The Board further notes that, the Veteran's DD Form 214 indicates that he had 1 year, 6 months, and 14 days of foreign service. His noted awards include the Combat Infantryman Badge (CIB), the Vietnam Campaign Medal, and the Vietnam Service Medal (VSM) for his service with the United States Army. His DD Form 214 also documents that his Military Occupational Specialty (MOS) was Infantryman. During his lifetime, the Veteran argued that he served in the Republic of Vietnam (Vietnam) during the Vietnam era.
The Board notes that the record previously included no evidence even suggesting a link between the Veteran's death and service. However, the new evidence, when considered in light of the evidence previously of record, and the amendment adding certain leukemias to the list diseases deemed etiologically related to herbicides (to include Agent Orange) exposure at least suggests that the Veteran's death may be associated with in-service herbicides exposure.
Accordingly, under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for the cause of the Veteran's death are met. See 38 U.S.C.A.
§ 5108 (West 2002); 38 C.F.R. § 3.156 (2012).
ORDER
As new and material evidence to reopen the claim for service connection for the cause of the Veteran's death has been received, to this limited extent, the appeal is granted.
REMAND
As discussed above, the Board is reopening the Appellant's claim for service connection for the cause of the Veteran's death; however, a review of the record reflects that the RO has not considered this claim on the merits. Under these circumstances, and to avoid any prejudice to the Appellant, a remand for RO consideration of the claim for service on the merits, in the first instance, is warranted. See Bernard v. Brown, 4 Vet. App. 384 (1993).
The Board also finds that additional development of the reopened claim for service connection for the cause of the Veteran's death is warranted.
As noted above, the Appellant asserts that the Veteran's death from acute myelogenous leukemia was due to his in-service herbicide exposure. As stated above, the Board finds that, in giving the Veteran the benefit of the doubt, the Veteran served in Vietnam during the Vietnam era. As the Veteran served in Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides, to include Agent Orange. The governing regulation has been amended to include chronic b-cell leukemias in the list of disorders deemed related to herbicides exposure. 38 C.F.R. § 3.309(e) (2012); 75 Fed. Reg. 53202 -53216 (August 31, 2010).
However, there is no clear medical indication in the record of whether acute myelogenous leukemia is a type of chronic b-cell leukemia, no medical opinion on this issue has been obtained, and there is otherwise no medical opinion or opinion addressing the etiology of the leukemia resulting in the Veteran's death . As such, the current medical evidence-while sufficient to reopen the claim-is inadequate to resolve the claim for service connection for the cause of the Veteran's death, on the merits. Therefore, the Board finds that a VA medical opinion, based on full consideration of the record, and supported by clearly-stated rationale, is warranted. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012); DeLaRosa v. Peake, 515 F.3d 1319 (Fed. Cir. 2008). Hence, the AMC should arrange for the claims file to be reviewed by an appropriate physician to obtain the desired opinion.
The Board also finds that further notification action in connection with the claim for service connection for the cause of the Veteran's death is warranted.
In Hupp v. Nicholson, 21 Vet. App. 342 (2007), the United States Court of Appeals for Veterans Claims (Court) held that in a claim for service connection for the cause of the Veteran's death, VA's notice requirements include (1) a statement of the conditions, if any, for which a Veteran was service-connected at the time of his or her death; (2) an explanation of the evidence and information required to substantiate a cause of death claim based on a previously service-connected condition; and (3) an explanation of the evidence and information required to substantiate a cause of death claim based on a condition not yet service-connected.
In this case, the Appellant was sent a notification letter in February 2011. This letter notified the Appellant as to what information and evidence must be submitted by her and what information and evidence would be obtained by VA. However, this letter stated that the Veteran was not service-connected for any disabilities during his lifetime, which is an incorrect statement. During his lifetime, the Veteran was service-connected for right ear hearing loss and residuals of a left maxillary fracture. The Appellant must be informed of that fact. The Board points out that action by the RO is required to satisfy the notice provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).
Hence, to ensure that all due process requirements are met, and that the record before the VA examiner is complete, the AMC should, through VCAA-compliant notice, give the Appellant another opportunity to provide evidence or information in support of her claim for service connection for the cause of the Veteran's death that is not currently associated with the claims file. The AMC's notice letter should explain what information and evidence is needed to substantiate the claim for service connection for the cause of the Veteran's death, consistent with Hupp (as discussed above), as well as explain the respective responsibilities of VA and the Appellant in obtaining additional evidence. The RO should explain that she has a full one-year period for response. See 38 U.S.C.A. § 5103 (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West 2002) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year VCAA notice period).
Regarding private records, the claims file contains four VA 21-4142 Forms dated in April 2004, giving VA authorization to obtain the Veteran's private treatment records. The claims file also contains a December 2003 VA 21-4142 Form referencing additional private treatment providers. To date, the RO has not attempted s to obtain these private treatment records, which appear to be pertinent to the Appellant's claim, and these forms expire after 90 days. Accordingly, in its letter, the RO should specifically request that the Appellant furnish updated authorization forms for the medical providers identified in April 2004.
Thereafter, the RO should attempt to obtain any additional evidence for which the Appellant provides sufficient information and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012).
The RO should also obtain outstanding Federal records. The claims file currently contains a February 1984 Social Security Administration (SSA) letter awarding benefits to the Veteran. The SSA decision and records considered by that agency in deciding the Veteran's claim are not currently in the claims file. The award letter does not state what the benefits are for, to include if the benefits are disability benefits. However, while SSA records are not controlling for VA determinations, they may be "pertinent" to VA claims. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Collier v. Derwinski, 1 Vet. App. 412 (1991). Hence, when the VA is put on notice of the existence of SSA records, as here, it must seek to obtain those records before proceeding with the appeal. See Murincsak; see also Lind v. Principi, 3 Vet. App. 493, 494 (1992). Thus, the Board finds that the AMC should obtain and associate with the claims file a copy of SSA's determination on the Veteran's claim, as well as copies of all medical records underlying that determination, following the current procedures prescribed in 38 C.F.R. § 3.159(c) (2012) with respect to requesting records from Federal facilities.
The actions identified herein are consistent with the duties to notify and assist imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R.
§ 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claim for service connection for the cause of the Veteran's death.
Accordingly, the case is REMANDED for the following actions:
1. Request from SSA a copy of its determination on the Veteran's claim for benefits, as well as copies of all medical records underlying its determination. See February 1984 SSA award letter. In requesting these records, the RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file.
2. Through a VCAA-compliant letter to the Appellant and her representative , give the Appellant and her representative another opportunity to provide information and, if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for the cause of the Veteran's death that is not already of record. Specifically request that the Appellant furnish updated authorization forms for the medical providers identified in April 2004.
In explaining how to establish entitlement to service connection for the cause of the Veteran's death, ensure that the letter meets the notice requirements of Hupp (cited above).
Also explain to the Appellant that she has a full one-year period to respond (although VA may decide the claim within the one-year period).
3. If the Appellant responds, obtain all identified, outstanding pertinent medical records , following the procedures set forth in 38 C.F.R. § 3.159 (2012), to include the following records:
* Sparrow Hospital (VA 21-4142 Form dated in April 2004 of record)
* Ingham Regional Medical Center (VA 21-4142 Form dated in April 2004 of record)
* Breslin Cancer Center (VA 21-4142 Form dated in April 2004 of record)
* Jeffery Letzer, D.O. (VA 21-4142 Form dated in April 2004 of record)
* Merdian Home Care (described in VA 21-4142 Form dated in December 2003, but no individual Form of record)
All records and responses received should be associated with the claims file. If any records sought are not obtained, notify the Appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.
4. After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran's entire claims file, to include a complete copy of this REMAND, to an appropriate VA physician for a comprehensive review of the record and an opinion as to the relationship, if any, between the Veteran's active military service and his death.
Specifically, the physician should address the following:
a. Is acute myelogenous leukemia a type of chronic b-cell leukemia (a type of leukemia that has been deemed to be etiologically related to herbicides, to include Agent Orange, exposure)?
b. If acute myelogenous leukemia is not a type of chronic b-cell leukemia, then is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's acute myelogenous leukemia:
(1) began during his active military service;
(2) was manifest to a compensable degree within the first post-service year; or
(3) is otherwise medically-related to service?
In rendering the requested opinion, the physician should specifically address the medical literature cited by the Appellant's representative in the April 2013 IHP, as well as private treatment records from the months prior to the Veteran's death, and all pertinent medical treatment reports of record.
The physician should set forth the complete rationale for the conclusions reached in a printed (typewritten) report.
5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998).
6. After completing the requested action, and any additional notification and/or development deemed warranted, adjudicate the claim for service connection for the cause of the Veteran's death, on the merits, in light of all pertinent evidence and legal authority.
7. If the benefit sought on appeal remains denied, furnish to the Appellant and her representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.
The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Appellant need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).
This REMAND must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2012).
______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs